MD SHAJU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1501/2020

[2021] HKCFI 2053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1501 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

1.   extension of time to file the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 9 February 2018 refused; and

2.   the application for leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 9 February 2018 (the “Decision”).  

2.  The Applicant is a Bangladeshi national.  He entered Hong Kong as a visitor on 26 October 2005 and was permitted to stay until 9 November 2005.  He over-stayed thereafter.  He was arrested by the police on 30 April 2006 for over-staying.  He was referred to the Immigration Department on 3 May 2006.  He lodged a non-refoulement protection claiming that he will be killed by his enemy if refouled.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 18 September 2015, the Director of Immigration (the “Director”) rejected his claims.  His appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision dated 9 February 2018.   However, it was not until 15 July 2020 that he applied for leave to apply for judicial review of the Decision of the Board. 

4.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  The application is two years and two months or 26 months out of time.

5.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Length of delay and explanation for the delay

6.  At the hearing, it was explained to the Applicant that the Decision was issued on 9 February 2018 but it was not until more than 29 months after that he sought leave to apply for judicial review.  Hence, his application was more than 26 months out of time.  He was asked to explain the reason for the delay. 

7.  The reason he instantly gave was that he was in prison.  He said he was in Lai Chi Kok Reception Centre in 2017 and he applied many times to “appeal” (as judicial review is understood by layman) but many times the prison staff refused to accept his application. His explanation is inconsistent with incontrovertible objective facts and is incredible.  The Decision of the Board was issued on 9 February 2018 not in 2017.  What he had to explain was his inaction for 26 months since February 2018.  It is also incredible that the prison staff would not have accepted his application and forwarded it on his behalf or facilitated him to do so.

8.  He said that once he was released, he applied for leave to apply for judicial review.  He was asked when was he released from prison.  He replied it was 6 October 2017.  That was before the date of the Board’s Decision.  He was not answering the question. The Court explained to him the milestone dates and stood down the case to let him formulate a proper explanation for the delay.

9.  When the Court resumed about 15 minutes later, he came back with the same explanation that he was in prison, he wrote but no one replied him.  The answers were unintelligible. Again, the Court stood down to let him think about his reasons.

10.  When the Court resumed after about 15 minutes, he was asked when was he put in prison.  He said he was on 29 June 2018.  So, he was not in custody between February and June 2018 during which period he could have lodged the application for leave to apply, but he did not.  When asked where he was in February 2018, he repeated that he was in prison.  Previously, he said he was put in prison on 29 June 2018.  When asked again, he said that he was in Lai Chi Kok Reception Centre from 6 October 2017 until 20 June 2018.  That might make sense.

11.  Then it was pointed out to him that the Decision was issued in February 2018 and he could not have received it while in prison from October 2017 to June 2018.  He replied that a friend informed him about the letter (ie the Decision).  When the Court attempted to pin down the date when he was informed about the Decision by asking him when did his friend tell him about the letter, he said it was 2017.

12.  When asked again how he came to know about the Decision, he proffered a new story that he learned about it in Castle Peak Bay Immigration Centre when he asked about the outcome of his appeal.  He was then given a copy of the Decision by the Board in June 2020. That may tie in with the date of his leave application, which is 15 July 2020.

13.  Piecing all these inconsistent accounts together, a plausible explanation emerged.  The appeal was heard on 6 March 2017.  The Decision was issued almost a year later on 9 February 2018.  In between, the Applicant was arrested for drug trafficking and imprisoned from 6 October 2017 until 20 June 2018.  He was then detained in Castle Peak Bay Immigration Centre where and when he learned about the Decision.

14.  The Court would have accepted this plausible scenario but for the following reasons. This plausible scenario was pieced up by the Court after his third attempt in giving an explanation. All along his explanation was that he knew about the Decision and attempted to appeal, but the prison officers did not facilitate him to.  This positive case which he repeated destroyed the jigsaw which the Court pieced up for him.  If he had never known about the Decision until he was detained in Castle Peak Bay Immigration Centre in 2020, that event would have left a deep impression in his memory and he would have proffered that explanation immediately when first asked.  His spontaneous reply that his friend told him about the Decision in 2017 also fortified the above inference.  The greater likelihood is that he knew about the Decision, whether directly or through his friend, before he was sent to Castle Peak Bay Immigration Centre and he put the blame for his inaction on the prison officer.  He was probably reminded (not informed for the first time) of the Decision in Castle Peak Bay Immigration Centre for some reasons, including possibly his repatriation to Bangladesh after having served his prison term and his appeal having been concluded.  Then, that triggered his application for leave to apply for judicial review.  There is no need for the Court to find out or speculate about the true reason for the delay.  The burden of proof is on the Applicant.   Whatever was the true situation, he has failed to give a valid explanation for his delay.  The delay for two years and two months is inordinate.

15.  Before assessing merits of the intended judicial review, the Court set out the background, the Applicant’s case, the Board’s finding and the grounds for application.

The Applicant’s case

16.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

17.  The Applicant had a cousin sister who complained to him about being disturbed by Shohel while she was on her way to and from college.  Shohel was a member of an illicit group in Srinagar known as Bashotti Group which is affiliated with different political parties, including the ruling party, Awami League. 

18.  One day, while the Applicant and his cousin brother, Raju, were cleaning up a cricket field Shohel came with two men and used offensive language in discussing about his cousin sister. Raju retorted and was beaten up. The Applicant joined in. He hit Shohel on his head with a spade.  Shohel fell unconscious and bled profusely.  Raju and the Applicant fled back home.

19.  The Applicant learned that Shohel was hospitalized.  Out of fear, he and Raju hid at their homes for two days.  On the third day, Raju went to a mosque and was then missing.  The Applicant believed he had been abducted by the Group.

20.  In September 2005, the Applicant went to stay with his aunt in Dhaka for two weeks.  During his stay, he was told by his father that five to six members of the Group had come to the house asking for his whereabouts and threatened that they would kill him.  Out of fear, the Applicant fled Bangladesh on 15 or 16 October 2005.  Then he sneaked into Hong Kong.

The finding of the Board

21.  The Board proceeded on the basis of the Applicant’s evidence in assessing his risks.  However, it was not satisfied that the Applicant has discharged the burden of proving his claim to non-refoulement protection.

22.  In respect of the Torture Risk ground, the Board correctly quoted the legal principles that to prove this ground, the Applicant must show that the torture he suffered falls within the definition of “torture” under section 37U of the Immigration Ordinance in that (1) it must attain the minimum level of severity; (2) must have been inflicted for one of the purposes or reasons listed in the definition; and (3) must have been inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 

23.  On the Applicant’s evidence, he was punched and kicked but suffered no serious injuries which attained the minimum level of severity.  The Board found that the purpose of the Group in threatening to inflict harm on the Applicant was to revenge on him for hitting Shohel.  That arose out of a private purpose which had nothing to do with the purposes or reasons stated in section 37U.  The Board found that members of the Group were private individuals not public officials and the harm to be inflicted by them would not have been inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  Hence, the Board found the torture to be inflicted does not fall within the definition of the Ordinance as would entitle the Applicant to non-refoulement protection under the Torture Risk ground.

24.  The Board also correctly referred to section 37ZA(1) and quoted the legal principle laid down by the Court of Final Appeal in Ubamaka[6] that the claimant must show substantial grounds for believing that if refouled he faces a real risk of being subjected to torture. 

25.  In the light of the Country of Origin Information (“COI”), the Board found that reasonable state protection is available to prevent the risk.  Further, as 11 years had lapsed, the Board doubted if the Group was still interested in looking for and harming the Applicant.  Hence, the Board found that the Applicant failed to discharge the burden of proving there are substantial grounds for believing he would face a real risk of being subjected to torture.

26.  In respect of BOR 3 Risk ground, the Board correctly identified that this is a non-state agent case and the correctly quoted the legal principle that a claimant has to show not only the risk of harm but also the lack of reasonable state protection.  The Board was satisfied on the basis of the COI that state protection of a practical standard is available.  The Applicant’s claim under this ground therefore failed.

27.  In respect of BOR 2 Risk ground, as the Applicant failed to show he would sustain ill-treatment which attains a minimum level of severity, this ground could not be engaged.

28.  In respect of Persecution ground, the Board correctly quoted the legal principle that to invoke this ground a claimant has to show a well-founded fear of persecution for a Convention reason, namely race, religion, nationality, membership of a particular social group or political opinion.  Having found that the purpose of the Group to inflict harm and threats on the Applicant was to revenge on him, the Board held that the persecution was not for a Convention reason.  The Applicant’s claim under this ground failed.

Grounds for judicial review

29.  The Applicant advanced the following five grounds of application in his notice of application for leave to apply for judicial review (Form 86):

(1)  the Decision was not reasonable and fair as required by the Wednesbury test;

(2)  the Director failed to give proper weight to state acquiescence resulting in an unfair outcome;

(3)  the Director has failed to take relevant matters into account;

(4)  the Director’s attitude was unfair; and

(5)  the Director failed to meet the high standard of fairness required by the Wednesbury test.

As the decision of the Director was overtaken by the Decision of the Board, the Court assumed in favour of the Applicant that the complaints against the Director are treated as complaints against the Board.

Grounds (1), (4) and (5) – Wednesbury unfair

30.  As it transpired at the hearing, the Applicant’s complaint about unfairness is directed at the outcome of appeal rather than the procedure which brought about the outcome.  He produced a written submission in Bengali which was translated by the interpreter.  The essence of his grounds for application for judicial review is that his problem is not solved; his father and two sisters died; his mother’s condition is not good; his mother told him not to return to Bangladesh because his enemies have threatened to kill him; and he loved his mother but could not go back. 

31.  Much of his submission revolved around his personal circumstances. Insofar as it is relevant to his non-refoulement claim, it is hearsay and had already been considered by the Board.  In fact, the Board proceeded on the basis of his evidence when assessing his fear and risk.  The Board accepted that Shohel is a member of the illicit Bashotti Group which is affiliated with Awami League; that he had hit Shohel with a spade making him unconscious; that he was being sought after by the Group; and that he was in fear.  The Applicant could have no valid complaint about the finding of fact and about unfairness when the Board acted wholly on the basis of the evidence he presented to the Board. 

32.  The Applicant has not particularized in what way was the Board in breach of the high standard of fairness.  In the opinion of the Court, the Board quoted the correct and relevant legal principles applicable to the four grounds under the USM.  The Board correctly applied those legal principles to the facts.  It found the Applicant’s dispute with Shohel and the Bashotti Group is a personal one; the ill-treatment or torture he received or would likely receive would not qualify as torture under section 37U of the Ordinance and would not in any event attain the minimum level of severity as to require protection.  For reasons as given by the Board and as briefly summarized in the subsection above, the Applicant has failed to discharge the burden of proving his entitlement to protection under the four applicable grounds.  These are finding of facts exclusively within the province of the Board which the Court in a judicial review will not intervene save for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7]. The Court could not find any such vitiating elements in the Board’s finding. The Decision could not be criticized as being Wednesbury unreasonable or irrational.

Ground (2) – State acquiescence

33.  On the Board’s finding that the dispute was a private one, state acquiescence is most likely irrelevant.  However, probably because of the alleged affiliation with the ruling political party, the Board had considered this issue.  The Board considered in paragraphs 26 to 30 of its Decision whether the ill-treatment would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 

Ground (3) – failure to take relevant matters into account

34.  Under this ground, the Applicant complained that the Director or the Board failed to take “such argument” into account and give enough weight to “those evidence”.  He did not particularize the argument or the evidence.  From the way the ground was presented, it appears that he was referring to state acquiescence.  As explained above, the Board had considered the issue of state acquiescence.  As for the weight to be given to a particular argument or piece of evidence, it is a matter for the Board as the tribunal of fact.  It is not a matter which the Court will intervene in a judicial review.

35.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such vitiating elements in the Decision.  The Decision was utterly fair and without fault. 

Conclusion on merits of the substantive application

36.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Prejudice to the respondent

37.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  But it would take little to persuade the court the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed after such a gross inordinate delay of two and half years.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the challenge to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

38.  The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

22.  The Applicant was more than 26 months late in making the application.  The delay was inordinate.  He could offer no valid explanation for the delay.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success.  It would be a futile exercise of its discretion to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance.  Accordingly, the application for extension of time to file the application for leave to apply for judicial review and the application for leave to apply for judicial review are refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  CACV 63/2015 (unreported) 3 November 2015

[6]  Ubamaka Edward Wilson v Secretary for Security and Another, FACV 15/2011, §174

[7]  [2018] HKCA 524 at [14(1)]